Petition for certiorari - SCOTUSblog

Supreme Cou~ U.S.
FILED
0 7- 2 1 1 AUG 1 5 2007
No. 0%
OFFICE OF THE CLERK
IN THE
~upreme {£ourt of t~e ~niteb ~tate~
ROCIO SANCHEZ, OLGA CASTRO, MYRNA MARTINEZ, KAREN
BJORLAND, CHERYL MACLYMAN, AND RHONDA KERN,
Petitioners,
v.
COUNTY OF SAN DIEGO~ ET AL.,
Respondenls.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
ERIC ALAN ISAACSON
BONNY E. SWEENEY
AMBER L. ECK
LERACH COUGHLIN STOIA GELLER
RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, California 92101
(619) 231-1058
DAVID BLAIR-LOY
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAl. COUNTIES
450 B Street, Suite 1420
San Diego, California 92101
(619) 232-2121
A llornejs Jor Petitioners
WALTER DELLINGER
(Counsel of Record)
PAMEt.A HARRIS
PAMMELA QUINN
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
STEVEN R. SHAPIRO
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York. New York 10004
(212) 549-2500
WILSON-EPES PRINTING Co., INC. -- (202) 789-0096 - WASHINGTON, D. C. 20002
®,~ ~o

QUESTION PRESENTED
In 1971, this Court held in Wyman v. James, 400 U.S.
309, 317, that a state official’s entry into a welfare
recipient’s home does not constitute a "search" subject to
Fourth Amendment standards because it occurs outside the
"traditional criminal law context." Subsequent decisions of
the Court have called that holding into very serious question,
but have not overruled it outright. The result is a recognized
circuit conflict over whether home entries in the socialservices
context are "searches" for Fourth Amendment
purposes and, if so, what Fourth Amendment standard
applies. The circuits also are divided on the more specific
question of whether the Fourth Amendment permits the
government to require that all welfare applicants submit to
suspicionless home entries as a condition of eligibility.
In order to resolve these conflicts, petitioners ask this
Court to answer the following question presented:
Are suspicionless searches like those required by San
Diego County as a condition of welfare eligibility, in which
pursuant to a program developed by the district attorney’s
office, county fraud investigators from the district attorney’s
office enter all applicants’ homes and look through their
most intimate areas, a violation of the applicants’ Fourth
Amendment rights?

ii
PARTIES TO THE PROCEEDING
Petitioners are Rocio Sanchez, Olga Castro, Myrna
Martinez, Karen Bjorland, Cheryl Maclyman, and Rhonda
Kern, applicants for public assistance subject to San Diego
County’s "Project 100%" program requiring home entries by
agents of the County District Attorney’s office as a condition
of welfare eligibility, plaintiffs-appellants below.*
Respondents are the County of San Diego; San Diego
County Board of Supervisors; San Diego County Department
of Health and Human Services; Jean Shepard, Director of the
San Diego County Health and Human Services Agency, in
her official capacity; San Diego Office of District Attorney;
and Bonnie Dumanis, District Attorney of the County of San
Diego, in her official capacity, defendants-appellees below.**
A further plaintiff, "Aurora," whose name appears in the Ninth
Circuit caption did not participate in the litigation before the Ninth
Circuit, and is not included among the petitioners to this Court.
Both Bonnie Dumanis and Jean Shepard are substituted in place
of the prior officeholders who were sued in their official capacities. See
Fed. R. App. P. 43(c)(2).

iii
TABLE OF CONTENTS
Page(s)
QUESTION PRESENTED ....................................................i
PARTIES TO THE PROCEEDING ................................~ .....ii
TABLE OF AUTHORITIES ................................................v
PETITION FOR A WRIT OF CERTIORARI ......................1
OPINIONS BELOW ............................................................. 1
JURISDICTION .................................................................... 1
CONSTITUTIONAL PROVISION INVOLVED ................2
STATEMENT OF THE CASE .............................................2
A. Factual Background ......................................3
B. Proceedings Below ........................................6
REASONS FOR GRANTING THE PETITION ..................9
I. RECOGNIZED TENSION IN THIS
COURT’S JURISPRUDENCE HAS
PRODUCED A CIRCUIT CONFLICT
OVER THE FOURTH AMENDMENT
STATUS OF HOME ENTRIES RELATED
TO SOCIAL-SERVICES PROGRAMS .................10
A. It Is Not Clear From This Court’s Decisions
Whether Wyman Is Still Good Law ............ l0
B. Confusion Over The Status Of Wyman Has
Produced A Conflict In The Courts Of
Appeals ........................................................14
C. This Court Should Clarify That Wyman Does
Not Permit The Kind Of Search Conducted
Here .............................................................18

iv
TABLE OF CONTENTS
(continued)
Page(s)
II.
THIS CASE PRESENTS AN IDEAL
VEHICLE FOR ADDRESSING THE
IMPORTANT CONSTITUTIONAL
QUESTION AT STAKE ........................................21
CONCLUSION ...................................................................22
APPENDIX .........................................................................1 a
Appendix A: Ninth Circuit Court of Appeals
Opinion, filed Sept. 19, 2006 ........................................1 a
Appendix B: District Court Order Granting
Summary Judgment, Mar. 7, 2003 .............................. 52a
Appendix C: District Court Order re Final
Approval of Class Settlement, entered Dec. 16,
2003 ............................................................................. 91 a
Appendix D: Opinion of District Court, May 12,
2003 ............................................................................. 97a
Appendix E: Court of Appeals Order Denying
Petition for Rehearing En Banc, April 16, 2007 ....... 11 la
Appendix F: District Court Final Judgment dated
Dec. 31, 2003, entered Jan. 5, 2004 ..........................120a

V
TABLE OF AUTHORITIES
CASES
Page(s)
Calabretta v. Floyd,
189 F.3d 808 (gth Cir. 1999) ............................. 15, 16, 19
Chandler v. Miller,
520 U.S. 305 (1997) ...................................................... 14
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ........................................................ 16
Ferguson v. City of Charleston,
532 U.S. 67 (2001) ........................................................ 16
Good v. Dauphin County Soc. Servs. for
Children & Youth,
891 F.2d 1087 (3d Cir. 1989) .................................. 15, 16
Griffin v. Wisconsin,
483 U.S. 868 (1987) ...................................................... 14
Illinois v. Lidster,
540 U.S. 419 (2004) ...................................................... 12
Illinois v. Rodriguez,
497 U.S. 177 (1990) ...................................................... 17
Kyllo v. United States,
533 U.S. 27 (2001) ........................................................ 13
Lenz v. Winburn,
51 F.3d 1540 (llth Cir. 1995) ....................................... 15
Mich. Dep ’t of State Police v. Sitz,
496 U.S. 444 (1990) ...................................................... 14
New Jersey v. T.L.O.,
469 U.S. 325 (1985) ................................................ 11, 12
Payton v. New York,
445 U.S. 573 (1980) ................................................ 12, 13
Reyes v. Edmunds,
472 F. Supp. 1218 (D. Minn. 1979) .............................. 18

vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Roe v. Tex. Dep ’t of Protective & Regulatory
SeFvs. ,
299 F.3d 395 (5th Cir. 2002) ................................... 14, 21
Roska v. Peterson,
328 F.3d 1230 (10th Cir. 2003) ......................... 15, 16, 21
S.L. v. Whitburn,
67 F.3d 1299 (7th Cir. 1995) ............................. 15, 17, 19
Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646 (1995) ...................................................... 12
Wildauer v. Frederick County,
993 F.2d 369 (4th Cir. 1993) ............................. 15, 16, 21
Wilson v. Arkansas,
514 U.S. 927 (1995) ...................................................... 12
Wyman v. James,
400 U.S. 309 (1971) .............................................. .passim
CONSTITUTIONAL PROVISION
U.S. Const. amend. IV .......................................................... 2
STATUTES
28 U.S.C. § 1254 ................................................................... 1
28 U.S.C. § 1331 ................................................................... 6
OTHER AUTHORITY
Amy Mulzer, Note, The Doorkeeper and the
Grand Inquisitor: The Central Role of
Verification Procedures in Means-Tested
Welfare Programs, 36 Colum. Hum. Rts.
L. Rev. 663 (2005) .................................................. 19, 20

PETITION FOR A WRIT OF CERTIORARI
Petitioners Rocio Sanchez, Olga Castro, Myrna Martinez,
Karen Bjorland, Cheryl Maclyman, and Rhonda Kern
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Ninth
Circuit.
OPINIONS BELOW
The court of appeals’ decision is reported at 464 F.3d
916 and is reprinted in the Appendix to the Petition ("App.")
at l a-51a. The court of appeals’ order denying en banc
rehearing is reported at 483 F.3d 965 and is reprinted at App.
llla-ll9a. The district court’s March 7, 2003, order
granting summary judgment, which the Ninth Circuit
reviewed and affirmed, appears in the appendix hereto at
App. 52a-90a. ~
JURISDICTION
The court of appeals issued its decision on September 19,
2006. App. la. A timely petition for rehearing en banc was
denied on April 16, 2007. App. llla. This Court granted
petitioners’ request for an extension of time to petition for
certiorari to and including August 15, 2007. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
~ A subsequent opinion that resolved certain matters not at issue here
was entered on May 12, 2003, and is available electronically at 2003 U.S.
Dist. LEXIS 27351 (S.D. Cal. May 12, 2003). It appears in the appendix
hereto at App. 97a-110a. A settlement of all remaining issues was
approved on December 12, 2003, by an order entered on December 16,
2003, App. 91a-96a, clearing the way for an appealable final judgment
dated December 31, 2003, and entered January 5, 2004, App. 120a-125a.

CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment of the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath and
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
STATEMENT OF THE CASE
San Diego County’s "Project 100%" requires every
welfare applicant, including those for whom there is no basis
for suspecting ineligibility or fraud--and even those able to
prove eligibility through other, less intrusive means--to
submit to a "home visit" from the County District Attorney’s
Public Assistance Fraud Division. This visit entails a
required home entry and can involve detailed inspection of
personal areas of the home, including bedrooms and
bathrooms.
The express purpose of the program is to uncover
evidence of ineligibility or fraud. The County also
anticipates that the program may uncover evidence that will
lead to criminal prosecution of applicants for past welfare
fraud or for crimes other than welfare fraud. Failure to
comply with the required "home visit" necessarily results in
denial of welfare benefits.
The Ninth Circuit invoked this Court’s decision in
Wyman v. dames, 400 U.S. 309 (1971), to uphold the
program. It did so despite recognizing explicitly that
intervening decisions by this Court call into question the
continuing validity of Wyman’s broad holding that the
Fourth Amendment does not apply at all under these

circumstances. It also did so over the "trenchant" dissenting
opinion of a member of the panel, see App. 119a (Kozinski,
J., dissenting from denial of rehearing en banc) (describing
Judge Fisher’s panel dissent). The divisive nature of the
issue prompted further dissent from eight of the active judges
on the court of appeals below on the question whether
rehearing en bane was warranted. App. 112a-118a.
The decision below deepens a long-standing conflict
among the courts of appeals on the status of Wyman and the
Fourth Amendment standard applicable to home entries in
the social-services context. It also puts the Ninth Circuit in
direct conflict with the Seventh on the constitutionality of
programs like the one at issue here. Review by this Court is
warranted to resolve the uncertainty relating to these
important constitutional questions.
A. Factual Background
San Diego’s Project 100% was conceived in 1997 by the
County District Attorney’s Office, with the stated aim of
"redoubling" its efforts to combat welfare fraud and assure
"program integrity. ’’2 In fact, the program was launched at a
time when the number of welfare agency referrals to the
District Attorney’s office requesting for-cause
investigations--/, e., in cases where there was some reason to
suspect ineligibility--was sharply declining. 3 As the
County’s welfare case load more than halved from 1994 to
1999, forcing a 37% reduction in County welfare staff, and
2 Se.e, e.g., Excerpts of the Record ("ER") 86 Ex. 48, at 14 (Answer
64); ER 85 Ex. 1, at 36, 115 (Apr. 22, 2002 Dep. Test. of L. Aragon,
Deputy Dist. Attorney, Pub. Assistance Fraud Division Chief ("Aragon
Dep.")); ER 85 Ex. 18, at 60 (Apr. 18, 2002 Dep. Test. of J. Zinser,
Deputy Dir. for Strategy & Planning Div., Health & Human Servs.
Agency).
3 ER 86 Ex. 38 (Mar. 5, 1997 Mem. from L. Aragon to G.
Thompson, Asst. Dist. Attorney).

4
as "for-cause" referrals to the District Attorney’s office for
investigations of suspected fraud dropped, the District
Attorney avoided staffing cuts by assigning its Fraud
Investigators the new task of investigating every welfare
applicant by looking through their homes on Project 100%
home visit "walk-throughs. ’’4
Pursuant to the Project 100% program, every welfare
applicant is informed that a mandatory "home visit" must be
completed before he or she will be approved for aid. App.
3a-4a. The applicant is not told when this "home visit" will
occur, although generally it takes place during regular
business hours within 10 days of the application. Id. at 3a.
The home visits are conducted not by social workers, but by
"investigators from the Public Assistance Fraud Division of
the D.A.’s office, who are sworn peace officers with badges
and photo identification." Id.
Once they arrive at the applicant’s home, the District
Attorney’s agents interview the applicant and then conduct a
"walk-through" of the home. App. 4a. During this walkthrough,
"[t]he investigator will also ask the applicant to
view the interior of closets and cabinets." Id. 5 Failure to
4 See ER 85 Ex. 16, at 16-17 (Jan. 30, 2002 Dep. Test. of J.
Vukotich, Asst. Deputy Dir., Health & Human Seres. Agency); ER 85
Ex. 21, at 3226 (Mar. 14, 2000 Health & Human Servs. Agency Mem.
noting decline in County welfare staff as caseloads dropped, but that
"[i]n contrast, the District Attorney’s investigation staff has not changed
during this time period").
5 The investigators look through bedroom closets and dresser
drawers. See, e.g., ER 85 Ex. 7, at 53-54 (Apr. 29, 2002 Dep. Test. of J.
Duvall, Public Assistance Fraud Investigator, Office of Dist. Attorney
("Duvall Dep.")); ER 85 Ex. 9, at 55-56 (Dec. 12, 2001 Dep. Test. of J.
Hale, Supervisor of Dep’t of Soc. Servs. Fraud Bureau); ER 85 Ex. 2, at
69-71 (Feb. 14, 2002 Dep. Test. of E. Bogard, Public Assistance Fraud
Investigator, Office of Dist. Attorney ("Bogard Dep.")); ER 85 Ex. 7, at
52-53 (Duvall Dep.). They inspect bathrooms and medicine cabinets,
count toothbrushes, and look for men’s bath products. ER 85 Ex. 8, at
82-83 (Apr. 3, 2002 Dep. Test. of E. Gonzalez, Fmr. Fraud Prevention

submit to the "home visit" (including the "walk-through")
automatically results in denial of the application for public
assistance. Id. at 3a-4a.
The express purpose of these investigations is to uncover
evidence of fraud in connection with the welfare application.
Id. In addition, should they find it, "the investigators are
required to report evidence of potential criminal wrongdoing
for further investigation and prosecution." Id. at 4a. This
extends beyond the application that is the subject of the
home entry: investigators will refer for prosecution evidence
of other criminal behavior. App. 4a n.3. The D.A.’s Public
Assistance Fraud Division chief testified that his
investigators are trained not to give rehabilitative counseling
or advice to applicants, and that their "focus is highly
limited" to legal compliance:
[I]t is not our expectation that they are going
to go outside of that. And I’m trying to
envision what a rehabilitation would be under
those circumstances. Get off the couch. Get
a job. I don’t know. So, no... --so I--no. I
don’t envision rehabilitation as a part of that.
I can’t even imagine what that would look
like.
ER 85 Ex. l, at 170-71 (Aragon Dep.).
Supervisor ("Gonzalez Dep.")); ER 85 Ex. 12, at 46 (Aug. 21, 2001 Dep.
Test. of Pet’r Myrna Martinez ("Martinez Dep.")). They look through
children’s bedrooms and inspect the children’s belongings, including
their clothing and even their dirty laundry. ER 85 Ex. 8, at 84 (Gonzalez
Dep.); ER 85 Ex. 2, at 88-90 (Bogard Dep.); ER 85 Ex. 14, at 51 (Apr.
25, 2002 Dep. Test. of F. Reid, Supervising Investigator, Office of Dist.
Attorney ("Reid Dep.")). They also request closer inspection of potential
evidence, such as bank statements or other personal papers they might
spot on a desk. ER 85 Ex. 5, at 77 (May 2, 2002 Dep. Test. ofL. Crosby,
Training Supervisor, Pub. Assistance Fraud Investigation); ER 85 Ex. 7,
at 21 (Duvall Dep.).

6
When the investigator conducts the home inspection, no
part of the home is off-limits, and no official policy or
protocol limits or guides the discretion of investigators in
deciding where to search inside the home or what items to
inspect. 6 Not surprisingly, subjects of these home
investigations testified that they were "frightened," "upset
and degraded," and even reduced to tears by the District
Attorney’s "humiliating and embarrassing" intrusions into
their homes. 7
B. Proceedings Below
1. Petitioners, applicants for public assistance in San
Diego County, brought the instant case, a facial challenge to
Project 100% as a violation of the Fourth Amendment’s
guarantee against unreasonable searches. 8 The district
court’s jurisdiction was invoked under 28 U.S.C. § 1331.
After certifying a class, the district court granted the
defendants’ motion for summary judgment. App. 52a-90a.
2. a. A divided panel of the Ninth Circuit affirmed, App.
la-51a, relying almost exclusively on Wyman v. James, 400
U.S. 309, a 1971 decision of this Courtl In Wyman, the
Court held that a home visit by a government social worker
to the home of a government aid recipient did not constitute
a "search" for Fourth Amendment purposes. Because the
home visit did not arise "in the traditional criminal law
context," the Court reasoned, it could not "be equated with a
search" implicating the Fourth Amendment. [d. at 317. And
even assuming the home visit could be treated as a search,
6 ER 85 Ex. 14, at 65 (Reid Dep.); ER 85 Ex. 7, at 19 (Duvall Dep.).
7 ER 85 Ex. 3, at 43-44 (Aug. 21, 2001 Dep. Test. of Pet’r Karen
Bjorland); ER 85 Ex. 12, at 40, 43-46 (Martinez Dep.).
8 Although petitioners sought relief under a variety of additional
state and federal theories, this Court’s review is sought only with respect
to the controlling federal constitutional law issues.

the Court continued, it was valid under the Fourth
Amendment because it was not unreasonable, ld.
Applying Wyman, the panel majority held, first, that no
Fourth Amendment "search" occurs when, as a condition of
welfare eligibility, agents of the District Attorney enter and
walk through ~a private home (including bedrooms and
bathrooms), searching for evidence of welfare ineligibility or
welfare fraud. As a result, the Fourth Amendment simply is
not implicated by the Project 100% home entries and walkthroughs.
App. 6a- 10a.
In the alternative, the panel went on to hold--again
relying on Wyman--that even if the home entries could be
characterized as "searches," such searches would be
"reasonable" as a matter of law under the Fourth
Amendment. App. l la-21a. The majority explained:
App 15a.
[B]ecause the Project 100% visits serve an
important governmental interest, are not
criminal investigations, occur with advance
notice and the applicant’s consent, and
alleviate the serious administrative difficulties
associated with welfare eligibility verification,
we hold that the home visits are reasonable
under the Supreme Court’s decision in
Wyman.
b. Judge Fisher dissented, unable to "agree with the
majority’s conclusion" that Wyman "’directly controls’ our
resolution of this case." App. 28a. Judge Fisher focused on
significant distinctions between Project 100% and the home
visits approved in Wyman:
Wyman involved a primarily rehabilitative
home visit by a social assistance
caseworker .... That is a far cry from the
program carried out by the County of San

8
Diego, whose Project 100% home visits entail
a law enforcement agent--trained not to give
advice to welfare applicants--walking
through the applicant’s home in search of
physical evidence of ineligibility that could
lead to criminal prosecution either for welfare
fraud or other crimes unrelated to the welfare
application.
According to Judge Fisher, Wyman neither compelled
nor warranted either of the majority’s holdings: that walkthroughs
of homes by agents of the District Attorney are not
Fourth Amendment "searches," or that even if they are,
Project 100% would be "reasonable" under the Fourth
Amendment. App. 28a-51 a.
3. Petitioners filed a motion for rehearing en banc. App.
11 la. The motion was denied, but only over public dissent
by eight of the Ninth Circuit’s active judges. Judge Kozinski
dissented "for the reasons expressed in Judge Fisher’s
trenchant panel dissent." App. 119a. Judge Pregerson,
writing for himself and six other judges, would have held
that Wyman does not govern petitioners’ challenge to Project
100%:
The majority opinion clings to Wyman v.
James, 400 U.S. 309 (1971), asserting that it
directly controls this case. This is
unsupportable for three reasons. First, as
clearly outlined in Judge Fisher’s dissent, the
program upheld in Wyman was significantly
different in scope and goal from San Diego’s
program. Second, allowing Wyman to
constrict the bounds of our Fourth
Amendment jurisprudence ignores over
thirty-five years of intervening law. Third,
allowing this opinion to stand is an assault on

9
our country’s poor as we require them to give
up their rights of privacy in exchange for
essential public assistance.
App. 112a-113a.
REASONS FOR GRANTING THE PETITION
As recognized by both the panel majority and dissenting
judges below, the holding of this Court’s 1971 decision in
Wyman v. James has been called into serious question by
subsequent decisions of the Court. As a result, the circuit
courts are divided as to whether home entries in the socialservices
context constitute "searches" subject to the Fourth
Amendment and, if so, what Fourth Amendment standard
governs their constitutionality. The lower courts also are in
conflict on the narrower question presented here: whether
programs like San Diego’s Project 100%, which condition
welfare eligibility on submission to suspicionless home
entries by fraud investigators, are permissible under the
Fourth Amendment.
Because the conflict in the lower courts is the product of
the uncertain status of this Court’s own precedent, it is most
unlikely to resolve itself without the Court’s intervention.
This Court should grant certiorari to clarify the status of
Wyman and, at a minimum, to confirm that Wyman’s
analysis of rehabilitative home-visits by social workers has
no application where, as here, agents of the District
Attorney’s office with no rehabilitative agenda search the
most intimate areas of a person’s home.

10
I. RECOGNIZED TENSION IN THIS COURT’S
JURISPRUDENCE HAS PRODUCED A CIRCUIT
CONFLICT OVER THE FOURTH AMENDMENT
STATUS OF HOME ENTRIES RELATED TO
SOCIAL-SERVICES PROGRAMS.
A. It Is Not Clear From This Court’s Decisions
Whether Wyman Is Still Good Law.
As even the panel majority below recognized, App. 1 la
n.8, the continuing validity of Wyman v. James, 400 U.S. 309
(1971), on which it rested its decision, has been called into
serious question by subsequent decisions of the Court. That
question, as well as the lower-court divisions it has produced,
is likely to persist unless and until this Court directly
addresses the status of Wyman.
1. In 1971, this Court considered in Wyman whether the
government could require that beneficiaries of the Aid to
Families with Dependent Children ("AFDC") program
submit to home visits by caseworkers or risk termination of
benefits. 400 U.S. at 310. The Court concluded, first, .that
the AFDC home visits did not constitute "searches" for
Fourth Amendment purposes. Because they did not arise "in
the traditional criminal law context," the Court reasoned, the
home visits could not "be equated with a search" implicating
the Fourth Amendment. See id. at 317.
The Court went on to say, in what amounted to dicta, that
even if the AFDC home visits could be considered
"searches," they would be permissible under the Fourth
Amendment because they were not unreasonable. The Court
relied for this conclusion on a close analysis of eleven factors
implicated by the facts of the case before it. 9 It was careful
9 The factors the Court considered relevant to the reasonableness of
the AFDC home visits were: 1) the public interest in protecting the needs
of the child who is the ultimate beneficiary of the welfare assistance; 2)
the state interest in ensuring that assistance only reaches its intended

11
not to suggest that "termination of benefits upon refusal of a
home visit is to be upheld against constitutional challenge
under all conceivable circumstances." ld. at 326.
2. In the more than 35 years since Wyman was decided,
this Court has decided a number of cases that are difficult, if
not impossible, to square with Wyman’s holding that an
AFDC home visit does not constitute a "search" under the
Fourth Amendment. First, and most fundamentally, when
Wyman was decided in 1971, it remained uncertain whether
the Fourth Amendment "regulate[d] only searches and
seizures carried out by law enforcement officers" engaged in
criminal law-enforcement activities, or whether it extended as
well to searches conducted by other state officials, as in the
school and social-services contexts. New Jersey v. T.L.O.,
469 U.S. 325,334-35 (1985) (search of students’ belongings
by school officials). The Court answered that question in
1985, in New Jersey v. T.L.O., holding---contrary to the first
premise of Wyman--that government inspections that occur
outside the traditional criminal context are indeed "searches"
subject to Fourth Amendment constraints. Id.; cf Wyman,
400 U.S. at 317 (concluding that the home visits in question
beneficiaries; 3) the public’s interest and expectation in "know[ing] how
[its] charitable funds are utilized and put to work"; 4) the interest in
rehabilitation; 5) the fact that home visits are at "the heart of welfare
administration"; 6) the relatively non-intrusive nature of the search at
issue; 7) the fact that nothing in the record "supports an inference that the
desired home visit [at issue] had as its purpose the obtaining of
information as to criminal activity"; 8) the inability of the state to verify
all of the information it sought solely through other, less-intrusive means;
9) the visit is not one by police or uniformed authority but instead is
conducted by a caseworker whose "primary objective is, or should be, the
welfare, not the prosecution, of the aid recipient for whom the worker has
profound responsibility"; 10) the visit is "not a criminal investigation,
does not equate with a criminal investigation," and "is not in aid of any
criminal proceeding"; and 11) "the warrant procedure... [has] seriously
objectionable features in the welfare context" compared to the home visit
at issue, because it would, inter alia, justify entry by force and be
unlimited in what hours it could be utilized. Wyman, 400 U.S. at 318-23.

12
"simply could not be equated with a search in the traditional
criminal law context").
New Jersey v. T.L.O. was the first of what has become
known as the "special needs" line of cases. In all of those
cases, the Court has reaffirmed the same principle that it
appeared to disavow in Wyman: that governmental intrusions
into personal privacy are "searches" that implicate the Fourth
Amendment whether or not they arise in the criminal
context. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515
U.S. 646 (1995) (school drug-testing of students); Illinois v.
Lidster, 540 U.S. 419 (2004) (vehicle checkpoint seeking
citizen assistance). Because those inspections advance a
"special need" separate from criminal law enforcement, they
are subject to a different Fourth Amendment standard under
this Court’s holdings. Rather than applying the Fourth
Amendment warrant requirement, the Court has assessed the
"reasonableness" of such programs by the now-familiar
balancing of the government’s interest in and need for the
program against its intrusiveness. See T.L.O., 469 U.S. at
337; Vernonia, 515 U.S. at 652-53. But the fact that the
inspections are not part of a criminal law-enforcement effort
does not mean that they are not "searches" at all, entirely
unregulated by the Fourth Amendment--as this Court
appears to have held in Wyman, and as the Ninth Circuit held
below, in reliance on that 1971 precedent.
Second, in the decades since Wyman was decided, this
Court has decided a number of cases establishing the special
sanctity of the home under the Fourth Amendment, and
emphasizing that governmental intrusion into the home "is
the chief evil" against which the Fourth Amendment
protects. Payton v. New York, 445 U.S. 573, 585 (1980)
(Fourth Amendment requires warrant for home arrest,
though not for arrest in public); see also Wilson v. Arkansas,
514 U.S. 927, 927 (1995) (Fourth Amendment requires
police to "knock and announce" before they enter private

13
home). Most recently, in Kyllo v. United States, the Court
explained that the Fourth Amendment "draw[s] ’a firm line
at the entrance to the house’"--and that any nonconsensual
governmental entry of a private home is therefore a "search"
subject to Fourth Amendment restrictions. 533 U.S. 27, 40
(2001) (quoting Payton, 445 U.S. at 590). In Kyllo itself, the
Court applied that principle to hold that even use of a
thermal-imaging device aimed at a private home from a
public street constituted a "search" under the Fourth
Amendment. It would appear to follow, afortiori, that an
actual physical entry into a home by a governmental official
easily would meet the threshold for a Fourth Amendment
"search."
The effort of the court below to reconcile Wyman with
this more modern precedent only highlights how
irreconcilable the two really are. The Ninth Circuit majority
reasoned that Kyllo is distinguishable from the home entry at
issue here because it "involved a classic criminal law
enforcement investigation." App. 18a n.14. But that
purported distinction runs head-on into the T.L.O. line of
"special needs" cases, which clearly establishes that a
governmental inspection need not occur as part of a "classic
criminal law enforcement investigation" in order to
constitute a "search" under the Fourth Amendment. l° In
short, Wyman’s first and principal holding--thata
governmental entry into a private home that occurs in the
social-services context, rather than the criminal context, is
not a "search" regulated by the Fourth Amendment--has
been undermined badly, if not completely superseded, by
subsequent decisions of this Court.
10 It is also difficult to reconcile with the facts of this case, in which
agents of the County prosecutor enter private homes with no
rehabilitative purpose, but with the e_xpectation that evidence of criminal
behavior may be uncovered--a search that very much resembles a
"classic criminal law enforcement" inspection.

14
3. Wyman’s discussion of the "reasonableness" of the
AFDC home visits under the Fourth Amendment--relying
on an analysis of eleven case-specific factors, see supra
n.9--also has been superseded by this Court’s subsequent
precedent. As discussed above, when Wyman was decided,
this Court had yet to articulate the "special needs" balancing
test that now generally governs searches undertaken outside
the criminal context, and calls for a weighing of the
governmental interest and the need for the program in
question against the degree of intrusion into individual
privacy interests. See, e.g., Chandler v. Miller, 520 U.S. 305
(1997) (drug testing of candidates for state office); Mich.
Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety
checkpoints); Griffin v. Wisconsin, 483 U.S. 868 (1987)
(search of a probationer’s home as condition of parole). The
application of the "special needs" balancing test in such
cases stands in sharp contrast to the unfocused analysis of
eleven different case-specific factors undertaken by the
Wyman Court.
B. Confusion Over The Status Of Wyman Has
Produced A Conflict In The Courts Of Appeals.
1. Given the tensions in this Court’s case law, it is
perhaps not surprising that the lower courts are in conflict as
to the proper Fourth Amendment treatment of home entries
by government officials in the social-services context. As
the Fifth Circuit recognized in Roe v. Texas Department of
Protective & Regulatory Services, 299 F.3d 395, 401 & n.4
(2002), "[s]electing the applicable test for a social worker’s
investigative home visit . . . [is] an issue over which other
courts of appeals have divided."
On one side of the divide is the Ninth Circuit in the
decision below. As discussed above, the panel majority
concluded that Wyman continues to govern this area in full,
and thus held that home entries and walk-throughs by agents
of the district attorneys office under Project 100% do not

15
constitute "searches" that implicate the Fourth Amendment
at all. App. 2a, 8a- 10a.
Several other circuits--the Third, Fourth, Seventh,
Tenth, and Eleventh--have held to the contrary, treating
home entries by government agents as Fourth Amendment
"searches" even when they occur in the social-services
context. Those courts have been required to narrow Wyman
to its facts or otherwise distinguish away the precedent from
this Court most directly on point. See Good v. Dauphin
County Soc. Servs. for Children & Youth, 891 F.2d 1087 (3d
Cir. 1989) (Fourth Amendment applies to social workers
entering homes to investigate allegations of child abuse);
S.L.v. Whitburn, 67 F.3d 1299 (7th Cir. 1995) (reading
Wyman as case in which Fourth Amendment applies, but is
not violated because consent rendered search permissible,
and applying same analysis to similar facts); Roska v.
Peterson, 328 F.3d 1230 (10th Cir. 2003) (Fourth
Amendment applies to social workers entering homes to
investigate allegations of child abuse); Lenz v. Winburn, 51
F.3d 1540 (1 lth Cir. 1995) (applying Fourth Amendment to
social worker’s home entry but finding no violation);
Wildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993)
(Fourth Amendment applies to home entry to investigate
fitness of foster parent). In fact, even the Ninth Circuit, in a
decision predating the decision below, has held that Fourth
Amendment standards regulate home entries by social
workers investigating the welfare of a child. See Calabretta
v. Floyd, 189 F.3d 808 (1999).
The confusion does not end there. Among the majority
of circuits holding that social-services home entries do
constitute "searches" under the Fourth Amendment, there is
an additional divide as to precisely what Fourth Amendment
standard should govern. Several of those circuits continue to
apply the traditional warrant requirement of the Fourth
Amendment to home searches conducted by government

16
social workers. See Roska, 328 F.3d at 1242 (Tenth Circuit)
("no special need renders the warrant requirement
impracticable when social workers enter a home"); Good,
891 F.2d at 1094 (Third Circuit) (rejecting argument that
exception to warrant requirement applies to social workers
entering homes to investigate charges of child abuse); see
also Calabretta, 189 F.3d at 817 (Ninth Circuit) (where
"sanctity of the home is involved," special needs exception
does not apply and warrant is required before social worker
may enter).
The Fourth Circuit, on the other hand, has relied on
Wyman to hold that the "special needs" balancing test, rather
than the warrant requirement, should apply to home entries
by social workers investigating the fitness of foster parents.
See Wildauer, 993 F.2d at 372. Though for the Fourth
Circuit--unlike the panel below--Wyman does not compel
the conclusion that a social-services home entry is not a
"search," it does affect the applicable Fourth Amendment
standard: "[I]nvestigative home visits by social workers are
not subject to the same scrutiny as searches in the criminal
context." Id. (citing Wyman, 400 U.S. at 318). ~
In sum, the federal circuits---driven largely by
uncertainty over the status and proper reading of Wyman--
are deeply and persistently divided over the proper analysis
of social-services home entries under the Fourth
Amendment. That division is most unlikely to cure itself
without this Court’s guidance.
~ Of course, the facts of this case--which involve a program
designed by the district attorney’s office to subject all applicants to
suspicionless searches of their homes as a condition of welfare eligibility,
with the expectation that such searches might uncover evidence that will
lead to criminal prosecutions--argue against application of the "special
needs" balancing test. Cf Ferguson v. City of Charleston, 532 U.S. 67
(2001) (refusing to apply "special needs" test to program with significant
law-enforcement involvement and purpose); City of Indianapolis v.
Edmond, 531 U.S. 32 (2000) (same).

17
2. The decision below also creates a circuit conflict on
the narrower question presented: whether the Fourth
Amendment permits systematic, mandatory inspections of
the homes of all welfare applicants. The Ninth Circuit, again
relying on Wyman, held that such inspections are consistent
with the Fourth Amendment. But the Seventh Circuit, in
S.L.v. Whitburn, 67 F.3d 1299 (1995), has held to the
contrary.
In Whitburn, the Seventh Circuit assessed the
constitutionality of a program in which home inspections to
verify food stamp eligibility occurred in cases where the
application could not be verified through other, less-intrusive
means. Applying Wyman, the court upheld the program, but
only on the ground that the home inspections were not
mandatory, in that "the applicant’s refusal to consent to the
home visit is not a criminal act, and benefits are not denied or
cut off because the applicant has refused to allow the home
visit." 67 F.3d at 1307. Both the Wisconsin program at issue
in Whitburn and the home visit in Wyman are, .in the view of
the Seventh Circuit, "unexceptional application[s] of the
principle that the Fourth Amendment’s ’prohibition does not
apply.., to situations in which voluntary consent has been
obtained." Id. (quoting Illinois v. Rodriguez, 497 U.S. 177,
181 (1990)).
That principle does not apply here. San Diego not only
requires home inspections in the case of every welfare
applicant, but directly links benefits to an applicant’s consent
to the search, denying benefits automatically when an
applicant refuses to allow the search. Indeed, benefits are
denied even if the applicant could verify eligibility in some
other way. Such a program would not be permissible under
the Seventh Circuit’s decision in Whitburn.12
~2 The Minnesota federal district court also has invalidated a welfare
home-visit program under the Fourth Amendment, using the same

18
C. This Court Should Clarify That Wyman Does Not
Permit The Kind Of Search Conducted Here.
As shown above, the Court’s intervention is required to
clarify whether and in what form Wyman survives
intervening decisions by this Court. This case presents the
perfect opportunity for the Court to clarify the scope of
Wyman--which under no possible reading could justify the
searches at issue here.
First, even assuming arguendo that Wyman has
continued application in the narrow context of rehabilitative
home visits by social workers, this is not such a case. Unlike
Wyman, this case does not involve in-home counseling by a
social worker at a kitchen table or in the living room, but
careful inspection of the home--from top to bottom--by an
agent of the County prosecutor who is prohibited from
giving helpful advice or counseling, and who is looking for
evidence of ineligibility and fraud, despite the absence of any
individualized suspicion. As Judge Fisher argued in dissent
from the decision below, an in-home interview by a socialassistance
caseworker, under regulations that flatly prohibit
"snooping in the home," Wyman, 400 U.S. at 321, is a far cry
from an inspection by the District Attorney’s investigator,
who goes through closets, dresser drawers, and medicine
cabinets. App. 37a (Fisher, J., dissenting); see also App.
118a (Pregerson, J., dissenting from denial of rehearing en
banc).
reasoning as the Seventh Circuit in Whitburn. In Reyes v. Edmunds, 472
F. Supp. 1218 (D. Minn. 1979), the court considered a program that, like
Project 100%, made home entries a condition of eligibility for welfare
benefits--though, unlike Project 100%, only where there had been a tip
or other information calling into question a recipient’s eligibility. The
court held that Wyman did not govern where home entries were made by
fraud investigators focused on criminal fraud, rather than social workers
with a rehabilitative mission, and ruled even this narrower home-entry
program unconstitutional. Reyes, 472 F. Supp. at 1224-26.

19
Second, and significantly, it is difficult to imagine a more
coercive situation than the one created by Project 100%. The
home visit is mandatory: the applicant is told that refusal to
submit to the search will result in an automatic denial of the
application for assistance. If this Court were to hold that
Wyman remains governing law, then it also should confirm
the view of several lower courts that Wyman is properly read
as applying only when a social-services home entry
reasonably can be construed as "consensual," see, e.g.,
Whitburn, 67 F.3d at 1307; Calabretta, 189 F.3d at 816-
decidedly not the case when assent is a condition of
receiving subsistence welfare benefits. See App. 116a-117a
(Pregerson, J., dissenting from denial of rehearing en banc)
(stating that "there can be no true consent here," where
applicants "are not given notice of when the visit will occur;
they are not informed of their right to withhold consent; they
are told the visit is mandatory; and they are aware of the
severe consequences of refusing the search").
Nor is there any reason to expand Wyman to cover this
case. Nothing indicates that there is a serious welfare-fraud
problem that would justify the searches at issue here. On the
contrary, the number of "for-cause" referrals was falling in
the time period just before Project 100%’s inception. See
supra n.3. And in any event, there is no indication that
searches like those required by Project 100% actually would
identify or deter fraud, even if it were a serious problem.
Experience shows that computer-matching systems are both
more likely to uncover fraud and far less intrusive on
personal privacy. See Amy Mulzer, Note, The Doorkeeper
and the Grand Inquisitor: The Central Role of Verification
Procedures in Means-Tested Welfare Programs, 36 Colum.
Hum. Rts. L. Rev. 663, 669-70 (2005). And mandatory
home visits make no sense as a measure to combat fraud
when applicants are denied benefits for refusing home

2O
inspections even if they can prove the veracity of all the facts
13
on their application in some other manner.
Finally, the Court should use this opportunity to
articulate a limiting principle that would prevent the
expansion of Wyman to reach a far broader category of
intrusive home searches. As one of the dissenting judges
below noted:
The government is a provider of countless
benefits and services, many of which require
verification of eligibility--such as disability
benefits, Medicare and Medicaid benefits,
veterans benefits, student financial aid grants
and lunch subsidies for school students. If the
majority is correct that a person’s expectation
of privacy in the home is reduced any time he
or she has a relationship with the state that
requires an eligibility determination, then
there seems little to prevent the government
from implementing a home visit program
similar to Project 100% with respect to these
beneficiaries as well.
App. 46a-47a n.12 (Fisher, J., dissenting). By the same
token, the reading of Wyman endorsed by the panel below
would permit agents of the Internal Revenue Service to enter
and search the home of any person claiming a dependent as a
tax deduction, in order to verify the claim. Wyman itself did
not contemplate so intrusive a search, cf Wyman, 400 U.S. at
324 (comparing AFDC home visit to request by IRS that
13 It may be that Project 100% is most effective not as a means of
combating fraud, but as a deterrent to eligible applicants. It is common
for verification procedures to be implemented with the goal or effect of
reducing total expenditures associated with the program, by way of
"informal rationing": When procedures become burdensome enough,
only the neediest will be willing to submit to them. See Mulzer, supra, at
679-80.

21
"taxpayer produce for the agent’s review some proof of a
deduction the taxpayer has asserted")--but until this Court
clarifies the more limited scope of Wyman, the lower courts
will continue to misread that decision in a way that would
authorize a broad range of governmental intrusions into the
home.
II. THIS CASE PRESENTS AN IDEAL VEHICLE FOR
ADDRESSING THE IMPORTANT
CONSTITUTIONAL QUESTION AT STAKE.
This case provides the Court with an unusually good
vehicle for resolving the conflict in the lower courts over the
Fourth Amendment status of home entries by government
officials in the social-services context. As many of the cases
cited above illustrate, the issue presented by this case most
commonly arises in connection with other legal issues that
also must be addressed in connection with the Fourth
Amendment question. For example, the issue frequently
arises as the first of several questions to be resolved as part
of a qualified immunity defense to a § 1983 claim. See, e.g.,
Roska v. Peterson, 328 F.3d at 1251 (deciding several issues,
including Fourth Amendment issue, to conclude qualified
immunity defense was valid); Roe v. Tex. Dep ’t of Protective
& Regulatory Servs., 299 F.3d at 395 (same); Wildauer v.
Frederick County, 993 F.2d at 374 (same). It may also arise
in the context of a criminal trial, on a motion to exclude
evidence discovered during an allegedly unconstitutional
home visit.
This case, however, cleanly presents the single issue of
whether searches like those required by Project 100% violate
the Fourth Amendment. Because it arises from a facial
challenge to San Diego’s Project 100%, it involves no
procedural complications or other issues that might
complicate review. The Court should take this opportunity
to resolve the status of Wyman and the conflict in the lower
courts over the Fourth Amendment’s application to home

22
searches conducted by government officials in the socialservices
context.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
ERIC ALAN ISAACSON
BONNY E. SWEENEY
AMBER L. ECK
LERACH COUGHLIN STOIA GELLER
RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, California 92101
(619) 231-1058
WALTER DELLINGER
(Counsel of Record)
PAMELA HARRIS
PAMMELA QUINN
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
DAVID BLAIR-LOY
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
450 B Street, Suite 1420
San Diego, California 92138
(619) 232-2121
STEVEN R. SHAPIRO
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
(212) 549-2500
Dated: August 15, 2007
Attorneys for Petitioners